[Cite as State ex rel. Verhovec v. Marietta,

.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT WASHINGTON COUNTY

STATE OF OHIO EX REL. : EDWARD VERHOVEC, : : Relator-Appellant, : : STATE OF OHIO EX REL. : DOROTHY VERHOVEC, : Case Nos. 11CA29, : 12CA52, 12CA53, Relator-Appellant, : 13CA1, 13CA2 : vs. : : DECISION AND THE CITY OF MARIETTA, et al., : JUDGMENT ENTRY : Respondents-Appellees. : RELEASED 12/04/2013

APPEARANCES:

William E. Walker, Jr., Massillon, Ohio, for Appellants.

C. Craig Woods, Squire Sanders (US) LLP, and Greta M. Kearns, Greta Kearns Law LLC, Columbus, Ohio, for Appellees.

Hoover, J.

{¶ 1} These consolidated appeals arise from two underlying lawsuits filed in the

Washington County Common Pleas Court: one filed by relator-appellant Edward Verhovec

against the City of Marietta and city officials in their official capacity (Washington County C.P.

No. 11OT197); and the other filed by relator-appellant Dorothy Verhovec, Edward Verhovec’s

wife, against the City of Marietta and city officials in their official capacity (Washington County

C.P. No. 11OT202).1 Both lawsuits asserted claims for mandamus and civil forfeiture relief

1 The City of Marietta and the named city officials will hereinafter be collectively referred to as “the City.” Washington App. Nos. 11CA29, 12CA52, 12CA53, 13CA1, 13CA2 2

under Ohio’s Public Records Act. The Verhovecs were, and continue to be represented by

appellant, William E. Walker, Jr., in their respective lawsuits against the City.

{¶ 2} The trial court awarded the City summary judgment relief on the claims asserted

by Dorothy Verhovec. That decision is the subject of a separate appeal before this court. See

State ex rel. Dorothy Verhovec v. The City of Marietta, et al., 4th Dist. Washington No. 12CA32.

The trial court also granted the City’s motion for judgment on the pleadings as to the claims

asserted by Edward Verhovec. Following the dismissal of his claims, Edward Verhovec filed a

motion for statutory damages, court costs, and attorney’s fees. The City likewise filed a motion

for sanctions and fees against the Verhovecs and attorney Walker in both lawsuits, contending

that the lawsuits were frivolous. After permitting the parties to brief the issues, and after holding

a joint hearing on the dueling motions, the trial court denied Edward Verhovec’s motion for

damages, court costs, and attorney’s fees, but awarded sanctions against the Verhovecs and

appellant Walker on the City’s motion.

{¶ 3} At issue on appeal, is the trial court’s judgment in favor of the City on appellant

Edward Verhovec’s motion for statutory damages, court costs, and attorney fees. Also at issue,

is the trial court’s award of sanctions against the Verhovecs and appellant Walker. For the

reasons set forth below, we affirm the judgment of the trial court.

I.

FACTS

A. The Public Record Requests Washington App. Nos. 11CA29, 12CA52, 12CA53, 13CA1, 13CA2 3

{¶ 4} On August 21, 2010, Dorothy Verhovec made a written public record request to

Cathy Coppernol, the former Clerk of Council for the Marietta City Council. The request sought

access to: (1) city council meeting minutes for each proceeding from January 1, 1990 to August

21, 2010; (2) draft meeting minutes that were handwritten by the Clerks of Council at each

council meeting during the same time frame; and (3) any audio and video recordings made of

those same meetings. This was the first of many public record requests made by Dorothy

Verhovec, and her husband, Edward Verhovec, to the City.2 On April 18, 2011, Edward

Verhovec requested access to cable television survey data from a survey conducted by the City

in 1999. The request sought access to 3,285 cable survey cards with each card containing five

questions, and the 16,424 separate responses and/or non-responses to each of the five questions

contained on the cable survey cards. The August 21, 2010 request and the April 18, 2011 request

formed the basis of the Verhovecs’ lawsuits against the City.

B. The Cushion Contracts

{¶ 5} At least some of the public record requests made by the Verhovecs to the City

were purportedly inspired by an agreement between Edward Verhovec and Cleveland attorney

Paul Cushion. Mr. Verhovec testified at deposition that he received a letter, out of the blue, from

Cushion asking if he would be interested in obtaining public records for him from different cities

throughout Ohio. Mr. Verhovec subsequently entered into two contracts with Cushion to obtain

from various cities either access to or copies of certain public records in exchange for payment of

$1,000.00 to $4,000.00 per city. In particular, Mr. Verhovec was to be paid $1,000.00 under the

Cushion contract if he were to successfully obtain Marietta City Council documents and

2 For a complete list of the public record requests made by the Verhovecs, see our decision and judgment entry in Case No. 12CA32. Washington App. Nos. 11CA29, 12CA52, 12CA53, 13CA1, 13CA2 4

recordings. Attorney Cushion also provided Mr. Verhovec with form letters to aid his request

for city council documents from Marietta, Uhrichsville, and Dennison; and red light camera

images from Trotwood and Dayton.

{¶ 6} Dorothy Verhovec initially testified at her deposition that she had “no idea” why

she signed the letter requesting the city council documents and recordings from the City. Later

in her deposition, however, Mrs. Verhovec testified that she signed the letter to help her husband

because he was ill. Mrs. Verhovec supposedly did not know and did not ask her husband why he

wanted the records. Mrs. Verhovec also testified that she signed other public record request

letters to help her husband but she had no idea why he was seeking the records.

{¶ 7} Mr. Verhovec testified at deposition that he wrote the letter, ultimately signed by

his wife, requesting the city council documents and recordings. Mr. Verhovec authored the

request with the purported intention of being compensated under his contract with attorney

Cushion. Mr. Verhovec further testified at deposition that, with respect to the cable television

survey cards, he had no interest in the records other than he “hoped to interest Mr. Cushion in

those.”

C. The City’s Response to the August 21, 2010 Request and April 18, 2011 Request

{¶ 8} The City provided Dorothy Verhovec with access to all the requested records that

were in its possession; but admittedly, certain audiocassettes containing council meetings had

been reused and the handwritten notes of the council meetings were not retained by the city.

{¶ 9} On July 1, 2011, the City made the cable television survey cards and responses

available to Edward Verhovec for inspection. However, Mr. Verhovec had already filed his

mandamus and civil forfeiture lawsuit four days earlier, on June 27, 2011. Washington App. Nos. 11CA29, 12CA52, 12CA53, 13CA1, 13CA2 5

D. The Lawsuits

{¶ 10} Following inspection of the city council records by the Verhovecs, Dorothy

Verhovec filed her lawsuit seeking both a writ of mandamus compelling the City to provide

access to all the requested records, and a civil forfeiture claim for every record that had been lost

or destroyed. As mentioned above, Edward Verhovec filed his lawsuit seeking mandamus and

civil forfeiture just four days prior to the City providing access to all of the requested cable

television survey cards and responses.

E. Edward Verhovec’s Other Lawsuits

{¶ 11} In discovery it was revealed that Edward Verhovec has made numerous other

public record requests and has filed many other lawsuits in the state seeking civil forfeiture

awards. For instance, Edward Verhovec testified at deposition that, in addition to the records

sought from the City of Marietta, he had sought public records from the following six Ohio

cities: Trotwood, Northwood, Springfield, Hamilton, South Euclid, and Dayton. Mr. Verhovec

has also filed lawsuits against Northwood, Springfield, Trotwood, and Dayton in connection to

those requests. In each of those cases, Mr. Verhovec has been represented by appellant Walker.

F. Evidence of a State-Wide Scheme

{¶ 12} The City also presented evidence to the trial court suggesting that the Verhovecs’

lawsuits are part of a larger, state-wide scheme involving several individuals seeking “windfall

forfeiture awards” in connection to public record requests. For instance, the City notes that

attorney Cushion is the named plaintiff in his own public records case in which he is represented

by the Verhovecs’ counsel, appellant Walker. See State ex rel. Cushion v. Massillon, 5th Dist.

Stark No. 2010CA00199,

. The City has also identified a similar contract Washington App. Nos. 11CA29, 12CA52, 12CA53, 13CA1, 13CA2 6

between attorney Cushion and Timothy Rhodes, pertaining to red light traffic photo enforcement

records from the City of Chillicothe. Mr. Rhodes testified at deposition that he was also solicited

out of the blue by attorney Cushion to obtain those records. The Rhodes-Cushion contract

ultimately resulted in Rhodes filing a mandamus and civil forfeiture lawsuit against Chillicothe.

Notably, Walker represented Rhodes in the Chillicothe lawsuit.3 Rhodes was also the relator in

the Supreme Court of Ohio public records case, Rhodes v. New Philadelphia,

,

,

, in which he was represented by Walker.

{¶ 13} Edward Verhovec also testified at deposition that he solicited his nephew, James

Verhovec, to send public record requests and to file lawsuits seeking mandamus and civil

forfeiture relief. Letters that are virtually identical to the request made by Dorothy Verhovec in

her August 21, 2010 letter, that were prepared by Edward Verhovec, but signed by James

Verhovec, were sent to the city of Uhrichsville and the village of Dennison.4 Those requests

eventually resulted in lawsuits, filed by attorney Walker, that are almost identical to this case.

See State of Ohio ex rel. James Verhovec v. The Village of Dennison, et al., Tuscarawas County

Common Pleas Court, No. 2011CV060708, and State of Ohio ex rel. James Verhovec v. The City

of Uhrichsville, et al., Tuscarawas County Common Pleas Court, No. 2011CV060707.

{¶ 14} The City has also identified numerous other lawsuits in the State of Ohio in

which Walker has represented individuals seeking civil forfeiture claims related to public records

requests. See State ex rel. Davila v. Bellefontaine, 3rd Dist. Logan No. 8-11-01, 2011-Ohio-

4890; State ex rel. Bell v. London, 12th Dist. Madison Nos. CA2010-11-027, CA2010-11-029,

; State ex rel. Davila v. Bucyrus,

,

, 956 3 The Chillicothe litigation recently came on appeal to this court. See State ex rel. Rhodes v. Chillicothe, 4th Dist. Ross No. 12CA3333,

. 4 Edward Verhovec was to be paid $1,000.00 per city under his contract with Cushion, if he were able to obtain access to or copies of the council documents and recordings from Marietta, Uhrichsville, and Dennison. Washington App. Nos. 11CA29, 12CA52, 12CA53, 13CA1, 13CA2

(3rd Dist.); State ex rel. Davila v. East Liverpool, 7th Dist. Columbiana No.

,

.

G. The Disposition of the Underlying Claims

{¶ 15} The trial court granted the City summary judgment on Dorothy Verhovec’s

mandamus and forfeiture claims, finding, inter alia, that the City had produced all of the records

in its possession and that Dorothy was not “aggrieved.” That decision is on appeal to this court in

Case No. 12CA32. The trial court also granted the City judgment on the pleadings on Edward

Verhovec’s mandamus and forfeiture claims, finding that the claims were moot because the City

had produced all of the requested records (the cable television survey cards and responses).

H. Edward Verhovec’s Motion for Statutory Damages, Court Costs, and Attorney’s Fees

{¶ 16} Following the disposition of his underlying claims, Edward Verhovec filed a

motion seeking statutory damages, court costs, and attorney’s fees.

I. The City’s Request for Sanctions

{¶ 17} Also following the disposition of the underlying lawsuits, the City moved for an

award of fees and sanctions under R.C. 2323.51 and Civ.R. 11 on the grounds that the lawsuits

were frivolous and brought in bad faith. The Verhovecs’ each subsequently filed an original

action in this court seeking a writ of prohibition to prevent the trial court from applying R.C.

2323.51 (See State ex rel. Edward Verhovec v. Washington County Common Pleas Court, et al.,

4th Dist. Washington No. 12CA43, and State ex rel. Dorothy Verhovec v. Washington County

Common Pleas Court, et al., 4th Dist. Washington No. 12CA44). We dismissed the Verhovecs’ Washington App. Nos. 11CA29, 12CA52, 12CA53, 13CA1, 13CA2 8

original actions on December 17, 2012, and they have both appealed those dismissals to the Ohio

Supreme Court.

J. The Trial Court’s December 12, 2012 Decision

{¶ 18} On September 10, 2012, the trial court held a joint hearing on both Edward

Verhovec’s motion for statutory damages, court costs, and attorney’s fees; and on the City’s

motion for sanctions. On December 12, 2012, the trial court issued a decision, which among

other things, denied Edward’s motion, and granted the City’s motion for sanctions. The trial

court found the Verhovecs’ lawsuits were frivolous and warranted sanctions under both R.C.

2323.51 and Civil Rule 11:

Their objective is to prove the destruction or loss of the documents so that they can collect forfeiture payments and attorney fees under the Public Record Law. The Court finds that such action constitutes frivolous conduct which warrants the award of attorney fees and costs. The Court finds that such conduct violates Civil Rule 11. [December 12, 2012 Decision at 18.]

{¶ 19} To that end, the trial court issued sanctions of $32,974.51 in Edward’s case, and

$274,033.49 as sanctions in Dorothy’s case, to reimburse the City’s costs and attorney’s fees

incurred in defending the lawsuits. The trial court issued the sanctions jointly against the

Verhovecs and appellant Walker under R.C. 2323.51, and individually against appellant Walker

under Civil Rule 11.

K. The Consolidated Appeals

{¶ 20} The two underlying lawsuits have resulted in five appeals which we have

consolidated; as well as the separate appeal in Case No. 12CA32. Washington App. Nos. 11CA29, 12CA52, 12CA53, 13CA1, 13CA2 9

{¶ 21} In September 2011, the trial court issued a decision awarding judgment on the

pleadings in favor of the City on Edward’s mandamus and forfeiture claims because his claims

had been rendered moot by the City’s production of all the requested records. Before the trial

court journalized its decision, Edward moved the court for an award of statutory damages, court

costs, and attorney’s fees pursuant to R.C. 149.43(C)(1). Without ruling on Edward’s motion,

the trial court journalized its Entry of Dismissal. Edward subsequently appealed from the Entry

of Dismissal (Case No. 11CA29). On appeal, we remanded the case so that the trial court could

dispose of Edward’s remaining claims of statutory damages, court costs, and attorney’s fees.

Edward moved for summary judgment on those remaining claims in July 2012.

{¶ 22} In June and July 2012, the trial court granted summary judgment in favor of the

City on Dorothy’s mandamus and forfeiture claims. Dorothy has appealed that decision (Case

No. 12CA32).

{¶ 23} In August 2012, the City moved for fees and sanctions under R.C. 2323.51 and

Civil Rule 11 in both of the underlying lawsuits. The trial court subsequently consolidated the

lawsuits and held an evidentiary hearing on September 10, 2012.

{¶ 24} On November 13, 2012, the trial court issued a decision granting the City’s

motion for sanctions under R.C. 2323.51 and Civ.R. 11 and denying Edward’s motion for

statutory damages, court costs, and attorney’s fees. The decision also disposed of all other

pending motions. On December 12, 2012, appellants filed appeals from that decision, even

though the trial court had yet to journalize its decision (Case Nos. 12CA52, 12CA53).

{¶ 25} Also on December 12, 2012, the trial court issued an amended decision that was

identical to its November 13, 2012 decision, except that it made relatively minor revisions in the Washington App. Nos. 11CA29, 12CA52, 12CA53, 13CA1, 13CA2 10

fee award calculations. The trial court entered its final judgment on December 19, 2012. The

appellants filed appeals from the final judgment on January 11, 2013 (Case Nos. 13CA1,

13CA2).

{¶ 26} Meanwhile, we returned Edward’s appeal on the statutory damages issues (Case

No. 11CA29) to our active docket by Magistrate’s Order dated December 18, 2012.

{¶ 27} As aforementioned, the appeal of Edward’s statutory damages issues (Case No.

11CA29), the two pre-mature appeals based on the un-journalized November 13, 2012 decision

(Case Nos. 12CA52, 12CA53), and the two appeals based on the December 2012 decision and

judgment entry (Case Nos. 13CA1, 13CA2) were consolidated.

II.

ASSIGNMENTS OF ERROR

{¶ 28} In Case Nos. 12CA52, 12CA53, 13CA1, and 13CA2, appellants Dorothy

Verhovec, Edward Verhovec, and William E. Walker, Jr., raise eight assignments of error for our

review.

First Assignment of Error:

THE TRIAL COURT ERRED TO THE APPELLANTS’ PREJUDICE WHEN IT MADE AN EX POST FACTO APPLICATION OF R.C. 149.351(C) TO CREATE LIABILITY RETROSPECTIVELY BASED ON THE SUBJECTIVE INTENT OF APPELLANTS IN VIOLATION OF R.C. 1.48 AND OHIO CONSTITUTITION SECTION 28, ARTICLE II. Second Assignment of Error:

THE TRIAL COURT ERRED TO APPELLANTS’ PREJUDICE AND ABUSED ITS DISCRETION WHEN IT FOUND THAT APPELLANTS ACTED FRIVOLOUSLY WHEN THAT FINDING WAS NOT SUPPORTED BY ANY COMPETENT, CREDIBLE EVIDENCE BUT WAS INSTEAD BASED UPON Washington App. Nos. 11CA29, 12CA52, 12CA53, 13CA1, 13CA2 11

AN INFERENCE DRAWN SOLELY FROM ANOTHER INFERENCE IN VIOLATION OF EVID.R. 702. Third Assignment of Error:

THE TRIAL COURT ERRED TO APPELLANTS’ PREJUDICE AND ABUSED ITS DISCRETION WHEN IT ALLOWED APPELLEES TO PRESENT CHARACTER AND “OTHER ACTS” EVIDENCE OVER OBJECTION, AND USED THAT EVIDENCE TO SUPPORT ITS FINDINGS THAT PETITIONERS ACTED IN CONFORMANCE TO CHARACTER, IN VIOLATION OF EVID.R. 404. Fourth Assignment of Error:

THE TRIAL COURT ERRED TO APPELLANTS’ PREJUDICE AND ABUSED ITS DISCRETION WHEN IT FOUND THAT APPELLANTS WERE A R.C. 2323.51 PARTY SUBJECT TO SANCTIONS; EVEN THOUGH THE STATE IS THE REAL PARTY IN INTEREST; BECAUSE R.C. 2731.04 REQUIRES MANDAMUS ACTIONS TO BE MADE IN THE NAME OF THE STATE; AND THE CIV.R. 17(A) COMMANDS THAT EVERY ACTION SHALL BE PROSECUTED IN THE NAME OF THE REAL PARTY IN INTEREST. Fifth Assignment of Error:

THE TRIAL COURT ERRED TO APPELLANTS’ PREJUDICE WHEN IT ADJUDICATED A R.C. 2323.51 MOTION FOR SANCTIONS AND FOUND EACH OF THEM LIABLE WITHOUT HAVING SUBJECT MATTER JURISDICTION; BECAUSE THE UNDERLYING MATTER WAS NOT AN ORDINARY PROCEEDING BUT A SPECIAL PROCEEDING AND AS SUCH WAS NOT ONE OF THE CLASS OF CASES THAT THE TRIAL COURT COULD HEAR, IN VIOLATION OF SECTION 4(B), ARTICLE IV, OF THE OHIO CONSTITUTION. Sixth Assignment of Error:

THE TRIAL COURT ERRED TO APPELLANTS’ PREJUDICE AND ABUSED ITS DISCRETION WHEN IT OVERRULED EDWARD’S MOTION TO STRIKE APPELLEES’ R.C. 2323.51 MOTION FOR SANCTIONS AGAINST EDWARD WHEN APPELLEES’ MOTION FAILED TO SATISFY THE JURISDICTIONAL TIME REQUIREMENT BY NOT BEING FILED WITHIN 30 DAYS AFTER FINAL JUDGMENT, IN VIOLATION OF R.C. 2323.51(B)(1). Seventh Assignment of Error:

THE TRIAL COURT ERRED TO APPELLANTS’ PREJUDICE AND ABUSED ITS DISCRETION WHEN IT FOUND THAT R.C. 2323.51 SANCTIONS WERE APPROPRIATE BECAUSE THAT FINDING WAS NOT SUPPORTED Washington App. Nos. 11CA29, 12CA52, 12CA53, 13CA1, 13CA2 12

BY COMPETENT, CREDIBLE EVIDENCE GOING TO ALL THE ESSENTIAL ELEMENTS OF THE CASE BECAUSE APPELLEES FAILED TO SHOW THAT THEY PROVIDED ACCESS TO ALL THE REQUESTED RECORDS AND THEY FAILED TO SHOW THAT THEY HAD NOT UNLAWFULLY DESTROYED THOSE RECORDS. Eighth Assignment of Error:

THE TRIAL COURT ERRED TO WALKER’S PREJUDICE AND ABUSED ITS DISCRETION WHEN IT IMPOSED SANCTIONS FOR FRIVOLOUS CONDUCT WHEN APPELLEES FAILED TO DEMONSTRATE WHAT CONDUCT CAUSED WHICH EXPENSES; IN VIOLATION OF R.C. 2323.51(B)(5). {¶ 29} As it pertains to Case No. 11CA29, Edward Verhovec raises two assignments of

error for our review.

First Assignment of Error:

THE TRIAL COURT ERRED AS A MATTER OF LAW IN NOT GRANTING SUMMARY JUDGMENT TO RELATOR/APPELLANT AFTER REMAND. Second Assignment of Error:

THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED ITS DISCRETION IN DENYING RELATOR/APPELLANT’S R.C. 149.43(C)(1) MOTION FOR DAMAGES, COSTS AND ATTORNEY FEES BECAUSE R.C. 149.43(C)(2)(b)(i) REQUIRED THE COURT TO MAKE THAT AWARD. III.

LAW & ANALYSIS

A. Edward Verhovec’s Motion for Statutory Damages, Court Costs, and

Attorney’s Fees

{¶ 30} We first consider Edward Verhovec’s two assignments of error pertaining to the

trial court’s denial of his motion for statutory damages, court costs, and attorney’s fees in case

number 11OT197. Because the two assignments of error are interrelated – in that they both

argue that the trial court erred as a matter of law – we consider them together. Washington App. Nos. 11CA29, 12CA52, 12CA53, 13CA1, 13CA2 13

{¶ 31} R.C. 149.43(B)(1) provides, in relevant part, that “[u]pon request and subject to

division (B)(8) of this section, all public records responsive to the request shall be promptly

prepared and made available for inspection to any person at all reasonable times during regular

business hours.” If the public office fails to make the public records promptly available, then the

requester may file a mandamus action seeking an order to compel the public office to make the

records available. R.C. 149.43(C)(1).

{¶ 32} A mandamus claim is rendered moot when a relator has received all of the

requested public records or has been given access to all of the records. State ex rel. Cranford v.

Cleveland,

,

,

, citing State ex rel.

Cincinnati Enquirer, Div. of Gannett Satellite Info. Network, Inc. v. Dupuis,

,

,

; Strothers v. Norton,

, 2012-Ohio-

1007,

, ¶ 13. “However, the production of requested documents does not,

according to the Public Records Act, moot a claim for statutory damages, court costs, and

attorney fees.” State ex rel. Hartkemeyer v. Fairfield Twp., 12th Dist. Butler No. CA2012-04-

080,

, citing State ex rel. Cincinnati Enquirer v. Heath,

,

,

.

{¶ 33} A claim for statutory damages, court costs, and attorney’s fees under the Public

Records Act is grounded in R.C. 149.43(C), which provides that:

(C)(1) If a person allegedly is aggrieved by the failure of a public office or the person responsible for public records to promptly prepare a public record and to make it available to the person for inspection in accordance with division (B) of this section or by any other failure of a public office or the person responsible for public records to comply with an obligation in accordance with division (B) of this section, the person allegedly aggrieved may commence a mandamus action to obtain a judgment that orders the public office or the person responsible for the public record to comply with division (B) of this section, that awards court costs and reasonable attorney’s fees to the person that instituted the mandamus action, Washington App. Nos. 11CA29, 12CA52, 12CA53, 13CA1, 13CA2 14

and, if applicable, that includes an order fixing statutory damages under division (C)(1) of this section. The mandamus action may be commenced in the court of common pleas of the county in which division (B) of this section allegedly was not complied with, in the supreme court pursuant to its original jurisdiction under Section 2 of Article IV, Ohio Constitution, or in the court of appeals for the appellate district in which division (B) of this section allegedly was not complied with pursuant to its original jurisdiction under Section 3 of Article IV, Ohio Constitution. If a requestor transmits a written request by hand delivery or certified mail to inspect or receive copies of any public record in a manner that fairly describes the public record or class of public records to the public office or person responsible for the requested public records, except as otherwise provided in this section, the requestor shall be entitled to recover the amount of statutory damages set forth in this division if a court determines that the public office or the person responsible for public records failed to comply with an obligation in accordance with division (B) of this section. The amount of statutory damages shall be fixed at one hundred dollars for each business day during which the public office or person responsible for the requested public records failed to comply with an obligation in accordance with division (B) of this section, beginning with the day on which the requester files a mandamus action to recover statutory damages, up to a maximum of one thousand dollars. The award of statutory damages shall not be construed as a penalty, but as compensation for injury arising from lost use of the requested information. The existence of this injury shall be conclusively presumed. The award of statutory damages shall be in addition to all other remedies authorized by this section. The court may reduce an award of statutory damages or not award statutory damages if the court determines both of the following: (a) That, based on the ordinary application of statutory law and case law as it existed at the time of the conduct or threatened conduct of the public office or person responsible for the requested public records that allegedly constitutes a failure to comply with an obligation in accordance with division (B) of this section and that was the basis of the mandamus action, a well-informed public office or person responsible for the requested public records reasonably would believe that the conduct or threatened conduct of the public office or person responsible for the requested public records did not constitute a failure to comply with an obligation in accordance with division (B) of this section; (b) That a well-informed public office or person responsible for the requested public records reasonably would believe that the conduct or threatened conduct of the public office or person responsible for the requested public records would serve the public policy that underlies the authority that is asserted as permitting that conduct or threatened conduct. Washington App. Nos. 11CA29, 12CA52, 12CA53, 13CA1, 13CA2 15

(2)(a) If the court issues a writ of mandamus that orders the public office or the person responsible for the public record to comply with division (B) or this section and determines that the circumstances described in division (C)(1) of this section exists, the court shall determine and award to the relator all court costs. (b) If the court renders a judgment that orders the public office or the person responsible for the public record to comply with division (B) of this section, the court may award reasonable attorney’s fees subject to reduction as described in division (C)(2)(c) of this section. The court shall award reasonable attorney’s fees, subject to reduction as described in division (C)(2)(c) of this section when either of the following applies: (i) The public office or the person responsible for the public records failed to respond affirmatively or negatively to the public records request in accordance with the time allowed under division (B) of this section. (ii) The public office or the person responsible for the public records promised to permit the relator to inspect or receive copies of the public records requested within a specified period of time but failed to fulfill that promise within the specified period of time. (c) Court costs and reasonable attorney’s fees awarded under this section shall be construed as remedial and not punitive. Reasonable attorney’s fees shall include reasonable fees incurred to produce proof of the reasonableness and amount of the fees and to otherwise litigate entitlement to the fees. The court may reduce an award of attorney’s fees to the relator or not award attorney’s fees to the relator if the court determines both of the following: (i) That, based on the ordinary application of statutory law and case law as it existed at the time of the conduct or threatened conduct of the public office or person responsible for the requested public records that allegedly constitutes a failure to comply with an obligation in accordance with division (B) of this section and that was the basis of the mandamus action, a well-informed public office or person responsible for the requested public records reasonably would believe that the conduct or threatened conduct of the public office or person responsible for the requested public records did not constitute a failure to comply with an obligation in accordance with division (B) of this section; (ii) That a well-informed public office or person responsible for the requested public records reasonably would believe that the conduct or threatened conduct of the public office or person responsible for the requested public records as described in division (C)(2)(c)(i) of this section would serve the public policy that underlies the authority that is asserted as permitting that conduct or threatened conduct. {¶ 34} Furthermore, “[t]he Supreme Court of Ohio has established that the award of

attorney fees is dependent upon an aggrieved party demonstrating that the release of the Washington App. Nos. 11CA29, 12CA52, 12CA53, 13CA1, 13CA2 16

requested public records provides a public benefit that is greater than the benefit to the

requester.”

, citing State ex rel. Dawson v. Bloom-Carroll Local School

Dist.,

,

,

, ¶ 34, and State ex rel. Beacon

Journal Publishing Co. v. Akron,

,

,

. A

relator is not entitled to an award of statutory damages or attorney fees if the only benefit

claimed by the relator is that the Public Records Act be enforced against the respondents. State

ex rel. DiFranco v. S. Euclid, 8th Dist. Cuyahoga No. 97713,

, ¶ 9-10. A denial

of statutory damages, costs, and attorney’s fees is reviewed for an abuse of discretion. State ex

rel. Patton v. Rhodes,

,

,

.

{¶ 35} In the case sub judice, Edward Verhovec made his written public record request

to the City for the cable television survey cards and responses on April 18, 2011. The City did

not immediately respond to Mr. Verhovec’s request, so on June 27, 2011, he commenced the

instant action for mandamus and civil forfeiture relief.

{¶ 36} Four days after the lawsuit was filed, on July 1, 2011, the City responded to the

request and notified Mr. Verhovec that the records were available for inspection. Shortly

thereafter, Edward Verhovec moved for statutory damages, court costs, and attorney’s fees.

{¶ 37} Meanwhile, at all times relevant to this matter, the City had a public records

policy that required it to acknowledge, in writing, all public record requests within three business

days following the public office’s receipt of the request. It is undisputed that the City did not

comply with its policy, and did not acknowledge receipt of the request in writing.

{¶ 38} Edward Verhovec first contends that the City’s failure to comply with its public

records policy -requiring the public office to acknowledge a records request within three Washington App. Nos. 11CA29, 12CA52, 12CA53, 13CA1, 13CA2 17

business days – was tantamount to the City’s failure to promptly provide access to the requested

records as required by R.C. 149.43(B)(1). Appellant concludes that the trial court erred in not

awarding him summary judgment, because as a matter of law, he was entitled to statutory

damages, court costs, and attorney’s fees under R.C. 149.43(C)(1)-(2).

{¶ 39} Edward’s first argument fails, however, because in order to recover damages,

costs, or fees under the Public Records Act, one must first prove a violation of the Act.

Strothers,

,

,

, at ¶ 21 (“An award of statutory

damages under R.C. 149.43(C)(1) is premised on a violation of R.C. 149.43(B).”). Simply put,

before one may recover damages, costs, or fees, he must demonstrate that the respondent did not

act promptly in responding to the request.

{¶ 40} Here, Edward leaps to the conclusion that because the City failed to adhere to its

acknowledgement policy, than it also failed to act promptly; and thus, he was entitled to

damages, costs, and fees as a matter of law. Edward’s analysis, however, plainly contradicts

established case law, which consistently has held that the determination of whether a public

office or person responsible for public records has acted promptly is dependent upon the facts

and circumstances of the case. Strothers at ¶ 21 (finding 45 day delay reasonable); State ex rel.

McCray v. Ohio Dept. of Commerce, 10th Dist. Franklin No. 11AP-1055,

, ¶ 3

(finding 60 day delay reasonable); State ex rel. Patton,

,

,

(finding 56 day delay reasonable). Thus, the proper inquiry is whether

the trial court, after conducting an evidentiary hearing, abused its discretion in concluding that

the City “promptly” responded to the request – an inquiry which appellant does not make on

appeal. Washington App. Nos. 11CA29, 12CA52, 12CA53, 13CA1, 13CA2 18

{¶ 41} Thus, when viewed in the proper context, the factual issue of whether the City

promptly responded to the request precluded summary judgment relief. Moreover, Edward’s

argument that the City’s noncompliance with its acknowledgment policy resulted in a statutory

breach under the Act is also without merit and does not provide a basis to recover under

summary judgment.5

{¶ 42} Edward next argues that the trial court improperly determined that he was not

entitled to damages, costs, or attorney’s fees because he was not “aggrieved.” While the trial

court decision did discuss the aggrievement issue; the trial court’s analysis of that issue formed

the basis for its decision to issue sanctions under R.C. 2323.51 and Civ.R. 11. The trial court

never ruled, as appellant suggests, that it declined to award damages, costs, or fees on the basis

that Edward was not “aggrieved.” Rather, the trial court’s decision not to award damages, costs,

and fees was based on the fact that the City promptly made the records available under the

unique facts and circumstances of the case; and on its decision to exercise its discretion under the

Act not to award the relief requested.6 Edward’s aggreivement argument is simply misplaced.

{¶ 43} Based on the foregoing, it cannot be said that the trial court abused its discretion

in denying Edward’s motion for statutory damages, court costs, and attorney’s fees.

Accordingly, Edward’s first and second assignments of error are overruled.

B. The Judgment Imposing Sanctions Under R.C. 2323.51 and Civ.R. 11

5 Edward argued that R.C. 149.43(B)(7) imposed a statutory duty on the City to comply with its acknowledgment policy. That provision, however, simply requires public offices to comply with internal policies regarding the transmission of records “by United States mail or by any other means of delivery or transmission pursuant to this division.” The provision does not create a statutory duty for public offices to comply with any other policies pertaining to public records. 6 See R.C. 149.43(C)(1) and (2), supra, granting the court discretion to decrease or decline an award of damages and fees even where a public office has violated the Act. Washington App. Nos. 11CA29, 12CA52, 12CA53, 13CA1, 13CA2 19

{¶ 44} The remaining assignments of error raised by appellants Edward Verhovec,

Dorothy Verhovec, and William E. Walker, Jr., pertain to the trial court’s award of attorney’s

fees and costs as sanctions under R.C. 2323.51 and Civ.R. 11.

{¶ 45} R.C. 2323.51 governs the award of attorney’s fees as a sanction for frivolous

conduct. R.C. 2323.51(A)(2) defines “frivolous conduct” to mean:

(a) Conduct of [a] * * * party to a civil action, * * * or of the * * * party’s counsel of record that satisfies any of the following: (i) It obviously serves merely to harass or maliciously injure another party to the civil action or appeal or is for another improper purpose, including, but not limited to, causing unnecessary delay or a needless increase in the cost of litigation. (ii) It is not warranted under existing law, cannot be supported by a good faith argument for an extension, modification, or reversal of existing law, or cannot be supported by a good faith argument for the establishment of new law. (iii) The conduct consists of allegations or other factual contentions that have no evidentiary support or, if specifically so identified, are not likely to have evidentiary support after a reasonable opportunity for further investigation or discovery. (iv) The conduct consists of denials or factual contentions that are not warranted by the evidence or, if specifically so identified, are not reasonably based on a lack of information or belief. {¶ 46} R.C. 2323.51(B) authorizes a trial court to award attorney’s fees to any party

adversely affected by frivolous conduct; however, section (B)(1) specifies that a party make a

motion for such award “not more than thirty days after the entry of final judgment in a civil

action or appeal.”

{¶ 47} “Courts must carefully apply R.C. 2323.51 ‘so that legitimate claims are not

chilled.’ ” Burchett v. Larkin,

,

,

(4th

Dist.), quoting Hickman v. Murray, 2nd Dist. Montgomery No. CA15030,

, * 5

(Mar. 22, 1996). As we noted in Burchett, the Hickman court explained that: Washington App. Nos. 11CA29, 12CA52, 12CA53, 13CA1, 13CA2 20

A party is not frivolous merely because a claim is not well-grounded in fact. Richmond Glass & Aluminum Corp. v. Wynn (Sept. 5, 1991), Columbiana App. No. 90-C-46, [

, at *2]. Furthermore, the statute was not intended to punish mere misjudgment or tactical error. Turowski v. Johnson (1991),

[

], quoting Stephens v. Crestview Cadillac (1989), 62[64] Ohio App.3d 129, 134 [

]. Instead, the statute was designed to chill egregious, overzealous, unjustifiable, and frivolous action. Turowski v. Johnson (1990),

[

]. Whether a claim is warranted under existing law is an objective consideration. Lewis v. Celina Fin. Corp (1995),

[

], citing Ceol v. Zion Indust. Inc. (1992),

[

]. The test, we find, is whether no reasonable lawyer would have brought the action in light of the existing law. In other words, a claim is frivolous if it is absolutely clear under the existing law that no reasonable lawyer could argue the claim.

, quoting

. {¶ 48} We have held that the question of whether conduct is frivolous is a question of

law that an appellate court independently reviews.

. However, if a reviewing

court finds that the trial court’s frivolous conduct finding is substantiated, the decision to award

attorney’s fees as a sanction for that conduct rests within the trial court’s sound discretion.

“Consequently, we will not reverse a trial court’s decision to award attorney fees for frivolous

conduct under R.C. 2323.51 absent an abuse of that discretion.”

citing Riley v. Langer,

,

(1st Dist. 1994), overruled on other grounds in Riston v.

Butler,

,

,

(1st Dist.); see also

Blackburn v. Lauder, 4th Dist. Lawrence No. 96CA5,

, * 3 (Nov. 12, 1996) (“A

decision to impose sanctions pursuant to this statute rests with the sound discretion of the trial

court and will not be reversed on appeal absent an abuse of that discretion.”). An abuse of

discretion implies an unreasonable, arbitrary, or unconscionable attitude on the part of the trial

court. Franklin Cty. Sheriff’s Dept. v. State Emp. Relations Bd.,

, 589 Washington App. Nos. 11CA29, 12CA52, 12CA53, 13CA1, 13CA2

(1992); Wilmington Steel Prods., Inc. v. Cleveland Elec. Illum. Co.,

,

(1991).

{¶ 49} Civ.R. 11 provides that for pleadings, motions, and other documents signed by

attorneys representing parties in a case, the signature of an attorney “constitutes a certificate by

the attorney * * * that the attorney * * * has read the document; that to the best of the attorney’s

* * * knowledge, information, and belief there is good ground to support it; and that it is not

interposed for delay.” The rule further provides that “[f]or a willful violation of this rule, an

attorney * * *, upon motion of a party or upon the court’s own motion, may be subjected to

appropriate action, including an award to the opposing party of expenses and reasonable attorney

fees incurred in bringing any motion under this rule.”

{¶ 50} “Civ.R. 11 employs a subjective bad-faith standard to invoke sanctions by

requiring that any violation must be willful.” State ex rel. Dreamer v. Mason,

,

,

, citing Riston at ¶ 9, and Ransom v. Ransom, 12th

Dist. Warren No. 2006-03-031,

. Thus, “[a]ny violation must be willful;

negligence is insufficient to invoke Civ.R. 11 sanctions.” Oakley v. Nolan, 4th Dist. Athens No.

06CA36,

.

{¶ 51} “The United States Supreme Court has observed that the purpose of Fed.R.Civ.P.

11, which is analogous to Civ.R. 11, is to curb abuse of the judicial system because ‘[b]aseless

filing puts the machinery of justice in motion, burdening courts and individuals alike with

needless expense and delay.’ Cooter & Gell v. Hartmarx Corp. (1990),

,

,

(1990). The court noted that the specter of Rule 11 sanctions

encourages civil litigants to ‘ “stop, think and investigate more carefully before serving and Washington App. Nos. 11CA29, 12CA52, 12CA53, 13CA1, 13CA2 22

filing papers.” ’

quoting Amendments to Federal Rules of Civil Procedure (1983),

, 192 (March 9, 1982 letter from Judge Walter Mansfield, Chairman, Advisory Committee on

Civil Rules).” Moss v. Bush,

,

,

.

{¶ 52} “We will not reverse a court’s decision on a Civ.R. 11 motion for sanctions

absent an abuse of discretion. State ex rel. Fant v. Sykes (1987),

, 29 OBR 446,

. An abuse of discretion occurs when a decision is unreasonable, arbitrary, or

unconscionable. State ex rel. Worrell v. Ohio Police & Fire Pension Fund,

,

,

.” Mason at ¶ 18.

{¶ 53} For their first assignment of error, appellants’ contend that the trial court erred by

making a retrospective and ex post facto application of R.C. 149.351(C) to support its finding

that the appellants acted frivolously.

{¶ 54} R.C. 1.48 provides that “[a] statute is presumed to be prospective in its operation

unless expressly made retrospective.” Section 28, Article II of the Ohio Constitution provides,

inter alia, that “[t]he General Assembly shall have no power to pass retroactive laws * * *.”

{¶ 55} R.C. 149.351(C) became effective on September 29, 2011, after the Verhovec

lawsuits had been filed in the trial court. R.C. 149.351(C)(2) provides:

In a civil action under division (B) of this section, if clear and convincing evidence shows that the request for a record was a pretext to create potential liability under this section, the court may award reasonable attorney’s fees to any defendant or defendants in the action. {¶ 56} Here, appellants’ first assignment of error fails for the simple fact that the trial

court did not rely upon R.C. 149.351(C)(2) when it awarded sanctions. Rather, the sanctions

were clearly awarded under the frivolous conduct statute, R.C. 2323.51, and Civ.R. 11. Washington App. Nos. 11CA29, 12CA52, 12CA53, 13CA1, 13CA2 23

Accordingly, there is no basis to support the appellants’ contention that the trial court

retrospectively applied R.C. 149.351(C)(2). Appellants’ first assignment of error is overruled.

{¶ 57} For their second assignment of error, appellants’ contend that the trial court erred

when it allegedly stacked inference upon inference to support its conclusion that they engaged in

frivolous conduct.7

{¶ 58} The trial court determined that appellants acted frivolously because “[t]heir

objective is to prove the destruction or loss of the documents so that they can collect forfeiture

payments and attorney fees under the Public Records Law. The Court finds that such action

constitutes frivolous conduct which warrants the award of attorney fees and costs.”

{¶ 59} A trier of fact may not draw an inference based entirely upon another inference.

Rather an inference must rest upon a fact supported by evidence. State v. Cowans,

,

(1999); Estate of Holley v. Am. Family Life Assur. Co. of Columbus, 4th

Dist. Pickaway No.04CA5,

.

{¶ 60} The Ohio Supreme Court has cautioned courts about the application of the rule

against stacking inferences:

At this juncture, we take the opportunity to remark that the rule forbidding the stacking of an inference upon an inference is disfavored by scholars and many courts. If such a rule were uniformly enforced, ‘ * * * hardly a single trial could be adequately prosecuted.’ 1A Wigmore, Evidence (Tillers Rev. 1983) 1106, 1111, Section 41. See, also, United States v. Eustace (C.A. 2, 1970),

. ‘Today most students of the problem of inference recognize that any single vision about the world or conclusion of fact rests on a multitude of inferences, premises, and beliefs, on a large complex of assumptions, and on a

7 Appellants’ specifically contend that the trial court abused its discretion in making the frivolous finding because the finding was not supported by competent, credible evidence; but instead, was based upon the stacking of one inference upon another. To the extent that appellants are challenging the frivolous finding under R.C. 2323.51, the question of whether conduct is frivolous is a question of law that an appellate court independently reviews. See ¶ 48, supra. Washington App. Nos. 11CA29, 12CA52, 12CA53, 13CA1, 13CA2 24

body of implicit or explicit principles by which the human organism perceives, organizes, structures, and understands experience; thus it is generally conceded that it is meaningless to denounce multistaged or cascaded inferences.’ (Emphasis sic.) Wigmore, supra, at 1112, fn. 3, Section 41. The rule is now rejected in most federal circuit courts. See Louisell & Mueller, Federal Evidence (1977) 646, 666, Section 94 (referring to the rule as ‘spurious’). Even those courts that have preserved the rule have commented that it is too frequently misunderstood, or misused as a convenient means of excluding evidence regarded as too remote, speculative or uncertain to be of probative value. See Hurt, supra, 164 Ohio St. at 331-332,

; Orey v. Mut. Life Ins. Co. (1939),

,

. * * * We therefore caution the bench and bar against resorting to this rule too readily and without a sufficient awareness of its pitfalls. Motorists Mut. Ins. Co. v. Hamilton Twp. Trustees,

,

(1986).

{¶ 61} We have reviewed the record, and we independently conclude that the appellants’

conduct was frivolous. Despite appellants’ arguments, the City was able to put forth sufficient

evidence that the Verhovecs, and appellant Walker, feigned their intent to access the public

records through the guise of the Cushion contract when their actual intent was to seek forfeiture

awards. Such conduct is frivolous because the lawsuits were brought for an “improper purpose,”

and because the Verhovecs were not “aggrieved” persons for purposes of civil forfeiture

damages as that term was defined by the Ohio Supreme Court in State ex rel. Rhodes v. New

Philadelphia.

{¶ 62} All of the evidence in the instant case indicates that the appellants are involved in

an intricate scheme to take advantage of the Public Records Act, specifically the civil forfeiture

provision, by seeking to prove the improper destruction of voluminous and archaic public

records. The only explanation offered by the appellants to rebut this conclusion, is that the

records were sought by Edward Verhovec to fulfill his contracts with attorney Cushion. Yet, Mr.

Verhovec testified that he was unsure of what exactly needed to be produced in order to collect Washington App. Nos. 11CA29, 12CA52, 12CA53, 13CA1, 13CA2 25

payment under the contracts. Moreover, it is undisputed that the cable television survey cards

and responses were not required to be produced for any Cushion contract. Mr. Verhovec tried to

explain that he sought the cable television records because he thought they may interest Mr.

Cushion. Yet, even after learning that Cushion was not interested in the records he still pursued

his lawsuit for civil forfeiture damages; and after he verified that all the survey cards were

present, he no longer had any interest in the cards. Mr. Verhovec has also filed numerous other

lawsuits throughout the state seeking forfeiture damages. Absent the Cushion contracts, there

are no logical explanations for these lawsuits. The Verhovecs are not historians. They have

never resided in the City of Marietta. Mr. Verhovec had not even heard of the Public Records

Act prior to being contacted by attorney Cushion “out of the blue.” Mr. Verhovec is also the

driving force behind the lawsuits filed by his nephew, James Verhovec, against the Village of

Dennison and the City of Uhrichville. Those lawsuits also seek significant forfeiture damages.

We also cannot ignore the connections between Walker and Cushion. Walker represented

Cushion in Cushion’s very own civil forfeiture lawsuit. Walker also represented Timothy

Rhodes in the Chillicothe lawsuit, in which Rhodes allegedly sought the records to fulfill his

contract with Cushion. Finally, Walker represents James Verhovec in his lawsuits against

Uhrichsville and Dennison.

{¶ 63} The lawsuits at issue in this case, the James Verhovec lawsuits, and the Timothy

Rhodes Chillicothe lawsuit were all allegedly commenced so that the parties could retrieve the

necessary documents required under the Cushion contracts. Both Rhodes and Edward Verhovec

were allegedly contacted out of the blue by attorney Cushion; and while the Verhovecs’ deny

having a relationship with Rhodes both the Verhovecs and Rhodes are represented by Walker.

Moreover, Walker has represented Cushion in Cushion’s very own public records lawsuit. Washington App. Nos. 11CA29, 12CA52, 12CA53, 13CA1, 13CA2 26

Appellants would have us believe that this is a matter of coincidence; but we cannot ignore the

connections. Based on the foregoing evidence, the trial court’s conclusion that the appellants’

true intent was to prove the nonexistence of the records so that they could collect the forfeiture

awards is reasonable; and, it is a conclusion that we share with the trial court.8 As such, there is

no doubt that the lawsuits were frivolous, as the law defines that term.

{¶ 64} In sum, we conclude that the appellants have no interest in the requested records

other than to build a case for forfeiture and reimbursement of attorney’s fees. To the extent that

our conclusion rests on any inferences, they are reasonable inferences that are supported by the

record. In light of the foregoing, the trial court correctly concluded that the appellants acted

frivolously by pursuing litigation for such an improper purpose.

{¶ 65} Appellants also contend that it is improper to consider their motives for

requesting the records when determining whether their conduct is frivolous. In the context of a

mandamus claim, the requester’s motive is indeed irrelevant. See New Philadelphia,

,

,

, at ¶ 20 (“[A] public office is obligated to honor a

records request by ‘any person’ and that a person does not have to explain his or her reasons for

wanting to inspect and copy a public record in order to validity request the record.”); see also

R.C. 149.43(B)(4) (prohibiting public office from conditioning availability of records by

requiring disclosure of the requestor’s identity or purpose). However, both of the lawsuits also

sought civil forfeiture damages. While “any person” may make a public records request under

R.C. 149.43(B), the Supreme Court of Ohio has rejected the notion that “any person” can recover

8 At least one other Ohio court has alluded to a similar scheme involving Rhodes, and others. Represented by attorney Walker, and nicknamed the “Public Records Police,” the Twelfth District Court of Appeals noted that the group “sought to become some of the highest paid ‘police’ in Ohio” through their forfeiture actions. State ex rel. Bell v. London,

at ¶ 42 (“Bell, Davila, and Rhodes refer to themselves as the ‘public records police,’ and relying on the civil forfeiture provision in R.C. 149.351(B)(2) * * * have sought to become some of the highest paid ‘police’ in Ohio.”). Washington App. Nos. 11CA29, 12CA52, 12CA53, 13CA1, 13CA2 27

forfeiture under R.C. 149.351. State ex rel. Rhodes v. Chillicothe,

,

citing New Philadelphia at ¶¶ 20, 23. “We cannot ignore the General Assembly’s use of the term

‘aggrieved,’ and we conclude that the General Assembly did not intend to impose forfeiture

when it can be proved that the requester’s legal rights were not infringed, because the requester’s

only intent was to prove the nonexistence of the records.” New Philadelphia at ¶ 23.

{¶ 66} Thus, it is proper to consider the appellants’ motives, because their motivations

are relevant in determining whether they are actually aggrieved for purposes of civil forfeiture

relief, or rather, as in here, the lawsuits were brought for the improper purpose of proving the

nonexistence of the records.

{¶ 67} Based on the foregoing, appellant’s second assignment of error is overruled.

{¶ 68} For their third assignment of error, appellants’ contend that the trial court violated

Evid.R. 404(B) by considering improper “character evidence” and “other acts” evidence in

making its frivolous conduct finding.

{¶ 69} Evid.R. 404(B) provides in pertinent part:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. {¶ 70} “[T]he decision to admit Evid.R. 404(B) prior acts evidence rests in the trial

court’s sound discretion and that decision should not be reversed absent an abuse of discretion.”

State v. Hairston, 4th Dist. Scioto No. 06CA3089,

; see also State v. Bey,

,

(1999). Washington App. Nos. 11CA29, 12CA52, 12CA53, 13CA1, 13CA2 28

{¶ 71} Appellants’ argue that “Evid. R. 404(B) justifies the preclusion of character

evidence and ‘other acts’ evidence in this case.” However, they make no effort to identify which

evidence was allegedly improper under the rule. Thus, it is impossible for us to determine

whether the trial court abused its discretion. Moreover, it is not our duty to make an argument

for the appellant. In re A.Z., 4th Dist. Meigs No. 11CA3,

; State v.

Nguyen, 4th Dist. Athens No. 12CA14,

; App.R. 16(A)(7). Accordingly,

we reject appellants’ argument and overrule their third assignment of error.

{¶ 72} For their fourth assignment of error, appellants’ contend that they are immune

from sanctions under R.C. 2323.51 because they are not purportedly the real party interest.

Instead, they contend that the State of Ohio is the real party in interest because the Verhovecs

brought their actions in mandamus.

{¶ 73} R.C. 2323.51(B)(4) provides that: “An award made pursuant to division (B)(1) of

this section may be made against a party, the party’s counsel of record, or both.” Appellants

contend that since the lawsuits were required to be brought in the name of the state on relation of

the petitioner, the state, and not the petitioner, is the party for purposes of R.C. 2323.51.

{¶ 74} Appellants, however, completely ignore existing case law from the Ohio Supreme

Court, which upheld sanctions under R.C. 2323.51 against a party that brought a mandamus

action to compel public records under R.C. 149.43. See State ex rel. Striker v. Cline,

,

,

. Furthermore, appellants have not cited a single case

in support of the proposition that a requestor bringing a mandamus action under the Public

Records Act is immune from sanctions under R.C. 2323.51. Washington App. Nos. 11CA29, 12CA52, 12CA53, 13CA1, 13CA2 29

{¶ 75} Rather, the case law cited by appellants’ supports the proposition that where the

object of a mandamus action is to enforce a public right, the state is regarded as the real party in

interest. But here, in addition to their mandamus actions, appellants sought civil forfeiture

awards, statutory damages, attorney’s fees, and costs. The intended purpose of the lawsuits was

to line the appellants’ pockets to the detriment of the City; not to serve a broader public interest

of the state.

{¶ 76} Accordingly, appellants’ argument that they are immune from sanctions for their

frivolous conduct simply because their claims sound in mandamus is without merit. Their fourth

assignment of error is overruled.

{¶ 77} For their fifth assignment of error, appellants’ contend that the trial court lacked

subject matter jurisdiction to award sanctions under R.C. 2323.51 because that statute applies

only to “civil actions” and a mandamus action is not a “civil action.”

{¶ 78} The Verhovecs made nearly identical arguments to this court in their prohibition

actions (Case Nos. 12CA43, 12CA44). In those cases, we expressly rejected the argument, and

instead we held that a mandamus action under the Public Records Act is a “civil action” for

purposes of R.C. 2323.51:

* * * Verhovec alleges that the trial court and Judge Boyer do not have jurisdiction to address the merits of Marietta’s sanction motion under R.C. 2323.51, because that statutory provision applies only to “civil actions” and a mandamus action is not a “civil action.” Verhovec is wrong for two reasons. First, a mandamus action is a civil action. State ex rel. Spirko v. Court of Appeals,

,

(1986)(“A proceeding for a writ of mandamus is a civil action”); State ex rel. Wilson v. Preston,

, 208,

(1962)(“an action for a writ of mandamus is a civil action”); State ex rel. Karmasu v. Tate,

(4th Dist. 1992)(“Mandamus is a civil action”). The frivolous conduct statute, R.C. 2323.51, states that it is applicable to certain conduct, including the conduct of “filing of a civil action … or the taking of any other action in connection with a Washington App. Nos. 11CA29, 12CA52, 12CA53, 13CA1, 13CA2 30

civil action. …” Thus, that statutory provision can be employed to request sanctions for frivolous conduct occurring within the context of a civil action seeking a writ of mandamus. State ex rel. Striker v. Cline,

,

,

(upholding the lower court’s award of sanctions for frivolous conduct under R.C. 2323.51 in a mandamus action brought to compel public records under R.C. 149.43). State ex rel. Edward Verhovec v. Washington County Common Pleas Court, et al., 4th Dist.

Washington No. 12CA43, Dec. 17, 2012 Decision and Judgment Entry at 3-4; State ex rel.

Dorothy Verhovec v. Washington County Common Pleas Court, et al., 4th Dist. Washington No.

12CA44, Dec. 17, 2012 Decision and Judgment Entry at 3-4.

{¶ 79} Appellants have not identified any authority that would call into question our

earlier decisions. Thus, for the reasons stated in Case Nos. 12CA43 and 12CA44, we overrule

appellants’ fifth assignment of error.

{¶ 80} For their sixth assignment of error, appellants’ contend that the trial court erred to

Edward and Walker’s prejudice when it failed to dismiss the City’s motion for sanctions in case

No. 11OT197, because the motion was purportedly untimely.

{¶ 81} R.C. 2323.51(B)(1) permits a party to file a motion for sanctions “at any time not

more than thirty days after the entry of final judgment.” Appellants argue that the City was

required to file its motion within 30 days of the trial court’s September 26, 2011 order, which

granted the City’s motion for judgment on the pleadings. That order, however, was not a “final

judgment.”

{¶ 82} The time period for filing a frivolous conduct claim under R.C. 2323.51 runs

from the entry of the “final appealable order.” Soler v. Evans, St. Clair & Kelsey,

,

(2002). An order must meet the requirements of R.C. 2505.02 to

constitute a final, appealable order. Chef Italiano Corp. v. Kent State Univ.,

, Washington App. Nos. 11CA29, 12CA52, 12CA53, 13CA1, 13CA2 31

88,

(1989). Under R.C. 2505.02(B)(1), an order is a final order if it “affects a

substantial right in an action that in effect determines the action and prevents a judgment[.]” To

determine the action and prevent a judgment, the order “must dispose of the whole merits of the

cause or some separate and distinct branch thereof and leave nothing for the determination of the

court.” Hamilton Cty. Bd. of Mental Retardation & Dev. Disabilities v. Professionals Guild of

Ohio,

,

(1989).

{¶ 83} Additionally, if the case involves multiple parties or multiple claims, the court’s

order must meet the requirements of Civ.R. 54(B) to qualify as a final, appealable order. See

Chef Italiano Corp. at 88. Under Civ.R. 54(B), “[w]hen more than one claim for relief is

presented in an action whether as a claim, counterclaim, cross-claim, or third-party claim, and

whether arising out of the same or separate transactions, or when multiple parties are involved,

the court may enter final judgment as to one or more but fewer than all of the claims or parties

only upon an express determination that there is no just reason for delay.” Absent the mandatory

language that “there is no just reason for delay,” an order that does not dispose of all claims is

subject to modification and is not final and appealable. Noble v. Colwell,

,

(1989); see Civ.R. 54(B). The purpose of Civ.R. 54(B) is “ ‘to make a

reasonable accommodation of the policy against piecemeal appeals with the possible injustice

sometimes created by the delay of appeals[,]’ * * * as well as to insure that parties to such

actions may know when an order or decree has become final for purposes of appeal * * *.”

Pokorny v. Tilby Dev. Co.,

,

(1977), quoting Alexander v.

Buckeye Pipe Line Co.,

,

(1977).

{¶ 84} Here, the September 26, 2011 Order was not a “final order” under R.C. 2505.02

because it did not dispose of Edward’s motion for statutory damages, costs, and attorney’s fees. Washington App. Nos. 11CA29, 12CA52, 12CA53, 13CA1, 13CA2 32

See Case No. 11CA29 (Dec. 16, 2011 Magistrate’s Order). Furthermore, the September 26,

2011 Order did not satisfy the requirements of Civ.R. 54, because it disposed of fewer than all of

the claims and it did not certify that there were no just reason for delay. Thus, the September 26,

2011 Order was not a “final appealable order,” and it did not trigger the 30-day deadline under

R.C. 2323.51.

{¶ 85} Appellants’ argument that the September 26, 2011 order was labeled a “final

appealable order,” is also without merit. A trial court’s labeling of an entry as a “final

appealable order,” is not dispositive of the issue. In re Murray,

,

(1990) (“Generally, the question of whether an order is final and appealable turns

on the effect which the order has on the pending action rather than the name attached to it, or its

general nature.”).

{¶ 86} The City filed its motion for sanctions against Edward Verhovec and attorney

Walker in Case No. 11OT197 on August 16, 2012. The trial court did not enter final judgment

in that case until December 17, 2012. The City’s motion was clearly filed within the statutory

deadline. Accordingly, we overrule appellants’ sixth assignment of error.

{¶ 87} For their seventh assignment of error, appellants’ contend that the trial court erred

in finding the lawsuits frivolous under R.C. 2323.51 and Civ.R. 11, because such a finding was

not supported by “competent, credible evidence.”

{¶ 88} We have already concluded, in response to appellants’ second assignment of

error, that the appellants’ conduct was frivolous. We noted that our conclusion was supported by

sufficient evidence in the record, and was not the result of speculation or inference stacking. We Washington App. Nos. 11CA29, 12CA52, 12CA53, 13CA1, 13CA2 33

defer to our analysis above, and hold that there is adequate evidence to support a finding of

frivolousness under R.C. 2323.51 and Civ.R. 11.

{¶ 89} Appellants’ further contend that their mandamus claims were legitimate, and thus

not frivolous, because (1) the City did not respond to Edward’s request until four days after the

filing of suit; and (2) the City did not provide Dorothy with all of the requested records.

However, appellants’ lawsuits also contained a claim for civil forfeiture, and it is clear that they

had no interest in the records other than to prove their destruction so that they could collect

forfeiture awards and attorney’s fees. The mandamus claims were simply a prerequisite to

obtaining forfeiture awards for the allegedly destroyed records.

{¶ 90} In sum, there is sufficient evidence in the record demonstrating a contrived and

concerted effort amongst the Verhovecs, attorney Walker, attorney Cushion, and others, to take

advantage of the civil forfeiture statute for purely pecuniary gain. Appellant’s seventh

assignment of error is overruled.

{¶ 91} For their eighth and final assignment of error, appellants’ contend that the trial

court erred by failing to segregate out the specific fees that were attributable to the appellants’

frivolous conduct. In their own words: “ * * * Appellees failed to show what conduct caused

which expenses. * * * Therefore, it cannot be determined which expenses were reasonably

incurred by what frivolous conduct.”

{¶ 92} Appellants’ argument focuses on the fact that the City did not identify which

attorney’s fees were attributable to the mandamus claims, and which fees were attributable to the

defense of the forfeiture claims. Essentially, appellants’ argument is premised on the notion that Washington App. Nos. 11CA29, 12CA52, 12CA53, 13CA1, 13CA2 34

the mandamus claims were not frivolous, and thus, the City is not entitled to reimbursement of

the cost to defend those claims (see assignment of error seven).

{¶ 93} As noted above, a trial court’s award of attorney’s fees as sanctions under R.C.

2323.51, is reviewed for an abuse of discretion. Similarly, an award of attorney’s fees under

Civ.R. 11 is reviewed under the abuse of discretion standard of review.

{¶ 94} Here, the trial court found that the lawsuits were frivolous in their entirety.

Because the trial court determined that the lawsuits were entirely frivolous, it was not necessary

to determine which fees were attributable to the defense of the mandamus claims, and which fees

were attributable to the forfeiture claims. Accordingly, it cannot be said that the trial court

abused its discretion. Appellants’ eighth assignment of error is overruled.

IV.

CONCLUSION

{¶ 95} For the foregoing reasons, appellant Edward Verhovec’s two assignments of error

pertaining to the denial of his motion for statutory damages, court costs, and attorney’s fees are

overruled. Likewise, appellants’ joint assignments of error relating to the imposition of sanctions

against them for frivolous conduct are also overruled. Accordingly, the judgment of the trial

court is affirmed.

JUDGMENT AFFIRMED. Washington App. Nos. 11CA29, 12CA52, 12CA53, 13CA1, 13CA2 35

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE AFFIRMED. Appellants shall pay the costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Washington County Common Pleas Court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

Abele, J: Concurs in Judgment and Opinion. McFarland, P.J.: Concurs in Judgment Only.

For the Court

By: Marie Hoover, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.